Tag Archives: free exercise

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation. The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different. The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith. In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law. In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause. There are, however, two problems with the Religious Freedom Restoration Act. First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions. Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states. Because this case involves a state law, the RFRA does not apply. While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application. That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls. Besides actual speech, free speech protection extends to expressive conduct. Furthermore, as a general matter, the government may not compel speech. The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law.Continue Reading...

The big court story of 2016 was the February death of Justice Antonin Scalia. In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama. However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general. The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess). By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court. A win this past November would have led to a solid Democratic majority for the next two or three decades. However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues. As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners. (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.) At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet. The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters. Democratic voters may soon suffer for this failure of leadership.